media | politics | dissent

Opening Pandora’s box

The Ayodhya judgement is out; Pandora’s box has been opened and I suppose the hope fairy is fluttering amidst us all. That there haven’t been riots is being seen as a sign that “the country has moved on”. My personal sense is that the absence of riots simply proves that riots are rarely spontaneous: adequate security has ensured an uneasy calm.

It’s still too early (at least for me) to make sense of this verdict, so I thought we could kick off the debate on Kafila by posting a list of links and resources and perhaps take the conversation forward as more and more information comes in.

To start off, the Judgements can be accessed at http://rjbm.nic.in/ . The top half of the page contains the gist of the judgments while your can find the entire judgement below the fold.

To get a sense of how the verdict broke down, NDTV has reduced the 3 judgments to a power-point presentation of sorts. You can view it here . Note that this is not a substitute for looking at the actual judgments.

Reactions thus far – at least in the English media – have been to acknowledge that the verdict is essentially some form of compromise. The Hindu has termed it “An intriguing compromise that might work”, noting that

The majority verdict of the Allahabad High Court on the Ram Janmabhoomi-Babri Masjid dispute is a compromise calculated to hold the religious peace rather than an exercise of profound legal reflection. This search for a compromise informs the orders of Justice S.U. Khan and Justice Subir Agarwal even if they would seem to stretch the law and, at times, logic as well. The third judge, Justice D.V. Sharma, decided that the disputed structure could not be regarded as a mosque and ruled in favour of the Hindu plaintiffs. The effect of the majority judgments is that the disputed land of 2.77 acres is to be divided equally among the two Hindu plaintiffs, the Nirmohi Akhara and Bhagwan Sri Rama Virajman, the deity regarded as a jurisdic person that can own property, and the Sunni Central Board of Waqfs U.P

Our judicial institutions were being asked to address what has been one of the most divisive political issues that independent India has faced; and so many of India’s people, forward-looking and aspirational, have expected that a peaceful, legal mechanism will provide satisfactory closure to the problem. In this verdict, and in what appears for now to be a measured response to it, we see that hope in action. But what is true by implication is that, if the court’s verdict on this issue is to have political heft, other Ayodhya-related cases can’t be considered minor or forgettable. Nobody can stand behind the judicial process on this case — and in the matter of the Babri demolition case, for example, duck out of legal consequences. The question of culpability for that act is completely unrelated to the legal question of ownership of the Babri site. And those cases need to be pursued visibly and energetically.

In his column The Leap and the Faith; Pratap Bhanu Mehta more of less endorses the verdict entirely – urging us to value symbolism over the legal arguments and not pick at the obvious flaws:

he full grounds on the basis of which these conclusions have been reached will have to be unpacked in the weeks to come. But the symbolism of the current moment is powerful. In the immediate context, it is important to recognise the three important ways the judgment is likely to be criticised. And it is equally important to resist the temptation to do so unthinkingly..

Each of these three critiques, if pursued assiduously, will have political consequences. If the property rights claims are agitated with fervour, by any side, it will simply signal veniality in the face of an enormously sensitive and historically complex issue. If the historical claims are contested with relentlessness, it will simply keep India trapped in old historical debates that have no resolution outside the ideologies of those who pursue those historical claims. And if issues of faith are reopened, it will polarise society once again…

The acknowledgement that this site be regarded for this purpose as the birthplace of Ram is, if anything, an attempt to de-politicise religion. Our standard distinctions between faith and reason, between myth and history, do injustice to what the court had to grapple here.

in the Indian judicial system, deities have always been regarded as legal entities who could fight their case through the trustees or managing board in charge of the temple in which they are worshipped by devotees.

If Ram Lala fought his case in Lucknow, even Kashi Vishwanath of Varanasi had done so in the Supreme Court when the UP government enacted the Sri Kashi Vishwanath Temple Act, 1983 for better management of the ancient temple.

The Supreme Court, in Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi, vs State of UP [1997 (4) SCC 606], recognised the right of a deity, though not for the first time, to move court and said, “Properties of endowment vest in the deity, Lord Sri Vishwanath.”

It dismissed claim of the priests that they alone had the right to manage the temple on behalf of the deity and said management of the temple by mahant/pandas/archakas did not mean it became their property. It upheld the Act saying it was merely for better management of the temple.

Some commentators have pointed to the Archeological Survey of India report that the judges relied upon to arrive at their judgement. At least one group – Sahmat – has a problem with the report. You can read their objections here

Another great question is: Who are the Nirmohis? and what’s with the Akhara:

It is one of the 14 akharas recognized by the Akhil Bharatiya Akhara Parishad and belongs to the Vaishnava sampradaya. It is headed by Mahant Bhaskar Das. It has been in the light in connection with the Ayodhya debate since 1959 when it filed a suit to take over the disputed site of Babri mosque.

Both government and opposition and the public in general are rightly in panic awaiting the verdict on Babri Masjid by Allahabad High Court – a situation brought about by the faltering non secular stand by all the concerned governments. The High Court is to give verdict t on the following points;
1. Was the place under Babri Majid the birth place of Lord Ram.
2. Was there or not a temple on the land on which Babri Masjid was built.
Now it is obvious to the meanest intelligence that it is impossible to prove that birth place of Lord Ram was under the Masjid – it may be a matter of faith, genuine or contrived or otherwise, but that is no proof, nor can it ever be put forward as a legal ground to take away the land from the Mosque.
– 2 –

If the finding is that Masjid was not built on a temple, then the Muslims get the land back and free to use it in any way including the building of Mosque.

In the alternative it may be held that there was a temple on the land of Babri Mosque. But even with this finding the suit by VHP/RSS has to be dismissed. Admittedly Babri Masjid has been in existence for over 400 years till it was demolished by goons of VHP/RSS in 1992. Legally, speaking the Sangh Parivar would have no right even if a temple had been demolished to build the Babri Masjid.

I say this in view of the precedent of the case of Masjid Shahid Ganj in Lahore decided by the Privy Council in (1940). In that case there was admittedly a Mosque existing since 1722 A.D. But by 1762, the building came under Sikh rule and was being used as a Gurdawara. It was only in 1935 that a suit was filed claiming the building was a Mosque and should be returned to Muslims.

– 3 –

The Privy Council while observing “their Lordship have every sympathy with a religious sentiment which would ascribe sanctity and in violability to a place of worship, they cannot under the Limitation Act accept the contentions that such a building cannot be possessed adversely” and then
went on to hold “The Property now in question having been possessed by Sikhs adversely to the waqf and to all interests thereunder for more than 12 years, the right of the mutawali to possession for the purposes of the waqf came to an end under Limitation Act. “On the same parity of reasoning even if temple existed prior to the building of Masjid 400 years ago, suit by VHP etc has to fail”.

There is another reason why in such a situation, suit would fail because in common law, even a rightful heir if he kills his ancestor, forfeits his right of inheritance. In the Masjid case too, there was ‘murder most foul’ and hence the murderer cannot be allowed to take the benefit of his own dastardly deeds, whatever the legal position may be.

– 4 –

It is true that sometime some Muslims groups in a spirit of large heartedness and as a measure of mutual accommodation, suggest that if it was found that the Masjid was built on the site of a temple, they would not like to now build a Mosque on the said site because the Koran forbids Muslims to build a mosque by demolishing any other religious place. But even them, if Muslims choose not to build a Masjid on this site, the ownership and use of the land remains with them. Hindu cannot under any circumstances lay a claim to this site which was under Babri Masjid.

Some well intentioned persons come out with apparently neutral suggestion of building a multi Religious complex on the site. To me this would be surrender to rabid Hindu Communal sentiment – whatever explanation you may give, a Muslim then would feel less equal citizen if even after he has won, he is asked to share this site with the goons who destroyed the Holy Mosque. This would be a defeat of secularism and against our constitution which mandates that all citizens, whether Hindus, Muslims have equal Rights and are equal before law.

– 5 –

A multi Religious Complex or multi culture Centre or a hospital can
obviously be built by the joint free will efforts of both Hindus and Muslims. But such a complex if it is to be built necessarily must be on the land away and outside the Masjid complex, and that too only if the Muslims give their consent – obviously as vacant land belongs to the Muslims. But under all circumstances, the site under Babri Masjid must remain in the exclusive possession of Muslims who will be free to use it in any way the community decides.

I feel that the government should start doing an exercise of consultation, preparation on these lines – to await helplessly trying to anticipate what the verdict would be is like a pigeon who on seeing a cat closes its eyes with the delusion that cat will go away – the result is obvious.

Equally I feel that leaders of all communities, political parties, social workers should start planning to meet the situation, because this matter requires the involvement of people at grass root level and the matter does not brook any delay.
– 6 –

The legal position is clear. It is only the weakness of political will that is responsible for the Ayodhya imbroglio to continue as one of the most bitter disputes within the country. By keeping the Ayodhya issue alive, the country has been kept away from addressing it’s most urgent task – how to meet the challenge of the growing pauperization of the masses. And that includes both Hindus and Muslims.

Allahbad Verdict Has Failed to Resolve the Ayodhya Dispute.
The Country Should Now Wait for the Supreme Court –
Need to Remain Alert against the Sangh Brigade’s Celebratory Noise and Communal Campaign

It appears that the much-awaited verdict of the Lucknow Bench of Allahabad High Court on Ayodhya issue has failed to provide a satisfactory resolution of the dispute. Going beyond established legal considerations to settle a title suit, the verdict seems to have based itself more on political grounds. The aggrieved parties do have the right to appeal to the Supreme Court for a reconsideration of the judgement and the country must now wait for the Supreme Court with patience and restraint. The Sangh brigade has however already started making celebratory noise, and secular progressive forces in the country will have to remain alert to thwart the Sangh’s attempt to use the court verdict to fuel its long-standing campaign against secularism and democracy.

http://www.madhyamam.com/news/2010/09/30/5/4446
In a statement, Justice V R Krisha Iyyer ( Retired Chief Justice, Supreme Court) has characterized the Ayodhya verdict as a gimmick played by the court: The disputed land ought to go to either of the litigants. It was not proper to have the land divided to three pieces and given to three parties by three Judges presiding. One would normally expect Judges to think beyond caste and religion. But, the present act of slicing the land into three pieces would create doubts if they too are affected by communalism. Further, it is unheard of anywhere else in the world that a High Court had to wait for long period of sixty years just to decide on a land dispute between two parties. That the Supreme Court had to intervene even in this belated moment, to decide when and how to deliver the judgement is also unjustifiable. The High Court is a forum of responsible judges and it is a shame on its part to be advised when to deliver its judgement.
It is also not justifiable to have the public life in the entire country brought to a standstill by clamping section 144 on its people. It is pitiable to have people’s freedom of movement, freedom of expression and such other freedoms restricted just in the name of ensuing court verdict on a property dispute.. Ours is a country with a 5000 years old culture and maturity; hence,to deploy hundreds of thousands of police and security personnel on the wrong assumption that its people would get to fight each other on hearing a court’s verdict is a shame to this country. I request Prime Minister Manmohan Singh not to bring insult to this country by resorting to such measures again.

The Lucknow Bench of the Allahabad High Court has made judicial history by deciding a long pending legal dispute over a piece of property in Ayodhya on the basis of an unverified and unsubstantiated reference to the “faith and belief of Hindus.”

The irony is that in doing so, the court has inadvertently provided a shot in the arm for a political movement that cited the very same “faith” and “belief” to justify its open defiance of the law and the Indian Constitution. That defiance reached its apogee in 1992, when a 500-year-old mosque which stood at the disputed site was destroyed. The legal and political system in India stood silent witness to that crime of trespass, vandalism and expropriation. Eighteen years later, the country has compounded that sin by legitimising the “faith” and “belief” of those who took the law into their own hands….

Tulsidas wrote his Ramcharitmanas in 16th century Ayodhya but made no reference to the birthplace of Lord Rama that the court has now identified with such exacting precision five centuries later.

The “faith and belief” that the court speaks about today acquired salience only after the Vishwa Hindu Parishad and the Bharatiya Janata Party launched a political campaign in the 1980s to “liberate” the “janmasthan.”

the High Court has taken a small step towards the restoration of the religious status quo ante which prevailed before politicians got into the act. But its reasoning is flawed and even dangerous. If left unamended by the Supreme Court, the legal, social and political repercussions of the judgment are likely to be extremely damaging.

If we accept the present full bench judgment of the Allahabad High Court on the Ayodhya case to be fair, it will probably mean just not that our convictions about Secularism, Constitution and the Rule of Law may be just skin deep, but also that we are not pained so much about a more recent trend in our system of administration of justice,which yields itself to a set of neo-liberal players hell bent on realpolitik.

Justice V. R. Krishna Iyer was a judge of the Supreme Court but he was not the Chief Justice.

Regarding this part of Mr. Varadarajan’s critique:

Tulsidas wrote his Ramcharitmanas in 16th century Ayodhya but made no reference to the birthplace of Lord Rama that the court has now identified with such exacting precision five centuries later.

This does not appear correct. Mr. Pratap Bhanu Mehta says:

Has the court not pronounced on a claim it has no competence to pronounce on? Again, the judgment will bear careful reading. But from the summary it appears that all the court has relied on is a proposition that is plausible: that for a long time many Hindus have regarded this as Ram’s birthplace. This proposition is all you need to say that there is legitimate dispute, and an alternative claimant to the site. Denying this proposition would not have been avoiding questions of faith and theology. It would rather have been seen as simply and wilfully overlooking a history of representations and beliefs necessary to understanding the character of the site. One can still argue that the court has come out the wrong way. But what the court has not done is validate faith in a crude sense; it seems to be saying that facts about the faith are relevant to this dispute.

I am not a lawyer so a detailed critique of this point, and in fact, the entire judgement, would be welcome. Indeed, even more elementary, a post detailing the central issues of the case would be a good starting point.

The Allahabad High Court’s judgment on the Ayodhya dispute has once again highlighted the disproportionate influence upper caste Hindu men from Uttar Pradesh in high places wield on the Indian republic. In the name of a ‘compromise’ the judgment is patently a complete debunking of the Indian Constitution and for that matter every principle of justice ever conceived by humankind.

It is basically raw Hindu prejudice masquerading as law and should be recognised by anyone with some sense as the ‘second demolition’ after Babri Masjid 1992. To give Lord Ram a ‘juristic’ persona and accepting any living human being as his ‘representative’ is a lunatic and indeed criminal act for which these dishonourable judges should be sacked. Will they also accept a ‘juristic’ persona for Ravana and give his representatives the right to take Ram to court for an ‘encounter killing’?

If the politicians and the corporate media are coy about calling a spade a spade it is time for others to speak up. To be silenced by the muscle of the Hindutva brigade into accepting this monstrous judgment in any form will mean accepting a fascist coup that spells the end of whatever weak democracy modern India represents. Wake up and smell the coffee guys- the cup of India brims over with sheer poison.

The split verdict of the Lucknow bench of the neither brings legal clarity to the dispute nor paves the way for an amicable settlement . It is most apposite that one party to the case has decided to move the against the verdict.

The essential non-judiciability of the dispute has manifested itself in the verdict as a jumble of faith, evidence, compromise and an implicit appeal for a negotiated partition of the disputed site among three claimants, including the Muslim body that claims to own the site on which the Babri mosque stood before its undisputed demolition in 1992.

It is difficult to accept such a jumble as a reasoned judicial verdict. The Supreme Court needs to redeem the law from its deformation into a plea for pragmatic giveand-take . Granted, the Supreme Court is unlikely to find a legal solution to a problem that is not amenable to legal resolution. But, at least, it would be able to delineate the boundaries of what the law can establish and what it cannot . This is a task that has completely eluded the Lucknow bench of the Allahabad High Court in the present case.

A court verdict is but one of the many components that together constitute public life in India with its immense diversity of language, religion, region, ethnicity, community grouping, educational attainment and integration with globalised modernity. Such diversity is as much cause for celebration and cultural strength and richness as it is fraught with the threat of schism. What use we make of diversity is our collective choice. In making that choice, democracy has to distinguish itself from majoritarianism, which does not recognise the rights of assorted minorities.

A majoritarian campaign to redefine India’s nationhood in religious terms demolished the Babri mosque and weakened the secular foundations of the Republic. Judicial pronouncements, their articulation in state policy and political action must seek to reinforce those weakened foundations, not strike at them further. Political practice must now live up to this goal, even if the Ayodhya verdict has not. So far, the major political parties seem to agree. The Supreme Court can end fuzziness on the imperative of constructive political action to solve the dispute.

Here’s is the full text of a statement issued today by Dipankar Bhattacharya, General Secretary of the Communist Party of India (Marxist-Leninist)-Liberation.
* * *

The Ayodhya Verdict:

A Blow to the Spirit of Modern India

On the eve of the Allahabad High Court verdict on Ayodhya, we had said the verdict would be a “test case for India’s secularism, democracy and justice.” Now, following a close look at the shocking verdict, we must say it has failed this test in every possible way. 30 September, 2010 will now be bracketed with 6 December, 1992. Eighteen years after the dastardly physical demolition of the Babri Masjid, we have now seen its judicial demolition, a verdict that flies in the face of the basic principles of justice and rule of law, and challenges the fundamental spirit of a secular, democratic modern India.

The High Court was supposed to decide on the title suit regarding the disputed site. It is well known that the BJP and its Sangh siblings were all along wary of the court deciding on this case on the plea that the whole issue concerned “faith” and there could be no adjudication over “faith”. It was clear to them that they had no legal basis for their claim and hence they chose the way of cheating the country. They assured everybody that the law of the land would be honoured, and then betrayed their own words to demolish the mosque through a communal-fascistic mobilisation in broad daylight.

Today, the Sangh is jubilant that the High Court has turned “faith” into law. All the three judges have accepted the fact that the idols of Ram, Sita and Bharat were smuggled in from outside on the intervening night of 22-23 December, 1949. Yet the judges have ruled by 2-1 majority that the “disputed structure” was not a mosque because it was apparently constructed by demolishing a Hindu religious structure and hence according to the tenets of Islam, it could not have the sanctity of a mosque! The other judge has of course differed on both counts – but the majority view prevailed.

The verdict is based heavily on two factors – the so-called ‘archaeological evidence’ marshalled by the ASI in its 2003 report (two previous ASI reports in 1970 and 1992 mentioned nothing of the sort) that there was a Hindu temple on the site before the mosque was built, and the ‘faith’ held by many Hindus that the disputed area is the birthplace of Lord Ram. The ASI report has been widely questioned and rejected by a whole range of historians and can at best be treated as a piece of speculative conjecture. The other aspect of ‘faith’ is just that – faith which can by no means be treated as an evidence to decide a title suit.

After conceding the Ramjanambhoomi claim on such thoroughly questionable grounds, the judges sought to give the whole thing the appearance of a reconciliatory measure whereby the disputed land would be apportioned into three equal parts with one part going to the waqf board. Reconciliation can only be attempted and achieved on the basis of truth and justice. In this case, both truth (at least recorded historical truth) and justice have been sacrificed at the altar of this phoney reconciliation formula and hence it is a compound travesty of all three. Can there ever be a dignified compromise by compromising truth and justice?

After Gujarat genocide, the BJP had been steadily losing ground in most parts of the country. Ever since its debacle in the 2009 Lok Sabha election – its second successive defeat in five years, the party seemed virtually clueless as to how to arrest its continuing state of demoralisation and desperation. Now the Allahabad High Court verdict has breathed some fresh life into the demoralised and desperate saffron camp. Advani has already described the verdict as heralding a new chapter in the country’s history of national integration. In all likelihood, an emboldened BJP will now reopen the whole gamut of its ‘suspended agenda’ and refuel its Hindutva campaign.

The judicial trajectory of the case will now reach the Supreme Court. It remains to be seen if and how far the Supreme Court can salvage the spirit of law and justice and heal the post-Ayodhya wound on the body polity and the composite culture of the country that has only been rendered deeper and more acute by the Allahabad High Court verdict. Every effort must be made to make sure that the glorious tradition of India’s composite culture and the secular democratic vision of modern India prevail over the Sangh brigade’s conspiracy to redefine India on retrograde majoritarian lines.